US v. Rahman

• Decision Date: 18 August 1994
• Docket Number: No. S3 93 Cr. 181 (MBM).,S3 93 Cr. 181 (MBM).
• Parties: UNITED STATES of America, v. Omar Ahmad Ali Abdel RAHMAN, a/k/a "Omar Amed Ali," a/k/a "Omar Abdel Al-Rahman," a/k/a "Sheik Rahman," a/k/a "The Sheik," a/k/a "Sheik Omar," El Sayyid Nosair, a/k/a "Abu Abdallah," a/k/a "El Sayyid Abdul Azziz," a/k/a "Victor Noel Jafry," Ibrahim A. El-Gabrowny, Siddig Ibrahim Siddig Ali, Clement Rodney Hampton-El, a/k/a "Abdul Rashid Abdullah," a/k/a "Doctor Rashid," Mohammed Abouhalima, Abdo Mohammed Haggag, Amir Abdelgani, a/k/a "Abdou Zaid," Fares Khallafalla, a/k/a "Abdou Fares," Tarig Elhassan, Fadil Abdelgani, Mohammed Saleh, a/k/a "Mohammed Ali," Victor Alvarez, a/k/a "Mohammed," Matarawy Mohammed Said Saleh, a/k/a "Wahid," Earl Gant, a/k/a "Abd Rashid," a/k/a "Abd Jalil," a/k/a "Abdur Rasheed," Defendants.
• Court: U.S. District Court — Southern District of New York

861 F. Supp. 247

UNITED STATES of America, v. Omar Ahmad Ali Abdel RAHMAN, a/k/a "Omar Amed Ali," a/k/a "Omar Abdel Al-Rahman," a/k/a "Sheik Rahman," a/k/a "The Sheik," a/k/a "Sheik Omar," El Sayyid Nosair, a/k/a "Abu Abdallah," a/k/a "El Sayyid Abdul Azziz," a/k/a "Victor Noel Jafry," Ibrahim A. El-Gabrowny, Siddig Ibrahim Siddig Ali, Clement Rodney Hampton-El, a/k/a "Abdul Rashid Abdullah," a/k/a "Doctor Rashid," Mohammed Abouhalima, Abdo Mohammed Haggag, Amir Abdelgani, a/k/a "Abdou Zaid," Fares Khallafalla, a/k/a "Abdou Fares," Tarig Elhassan, Fadil Abdelgani, Mohammed Saleh, a/k/a "Mohammed Ali," Victor Alvarez, a/k/a "Mohammed," Matarawy Mohammed Said Saleh, a/k/a "Wahid," Earl Gant, a/k/a "Abd Rashid," a/k/a "Abd Jalil," a/k/a "Abdur Rasheed," Defendants.

No. S3 93 Cr. 181 (MBM).

United States District Court, S.D. New York.

August 18, 1994.

COPYRIGHT MATERIAL OMITTED

Patrick J. Fitzgerald, Robert S. Khuzami, Andrew C. McCarthy, Alexandra Rebay, Asst. U.S. Attys., New York City, for U.S.

Emmanuel A. Moore (Legal Advisor to defendant Abdel Rahman, pro se).

William M. Kunstler, Ronald L. Kuby, New York City, for defendant Siddig Ali.

Kenneth D. Wasserman, New York City, for defendant Hampton-El.

Wesley M. Serra, Brown Berne & Serra, New York City, for defendant Alvarez.

Charles Lavine, Grossman Lavine & Rinaldo, Forest Hills, NY, for defendant Fadil Abdelgani.

OPINION AND ORDER

MUKASEY, District Judge.

The defendants in this case are charged with participating in a seditious conspiracy to conduct a war of urban terrorism against the United States, and with related acts and agreements in furtherance of that goal. Now before the court are motions by Omar Ahmad Ali Abdel Rahman, Siddig Ibrahim Siddig Ali, Clement Rodney Hampton-El, Victor Alvarez and Fadil Abdelgani to suppress tape recorded telephone calls which the government intends to introduce at trial, and which were obtained by the government through electronic surveillance that the government says was conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA" or the "Act"). 50 U.S.C. §§ 1801-1811 (1988). Also before the court is an application by the government to have the legality of its surveillance determined based on ex parte, in camera submissions, pursuant to 50 U.S.C. § 1806(f). For the reasons set forth below, the government's application is granted and the defendants' motions are denied.

I.

The Act creates a Foreign Intelligence Surveillance Court ("FISA court") which reviews government applications to conduct surveillance in aid of protecting the United States against attack by foreign governments or international terrorist groups. 50 U.S.C. §§ 1801(e), 1803. The surveillance in question here was conducted based on six separate applications relating to four separate defendants: Rahman, Hampton-El, Siddig Ali and Earl Gant. Rahman and Hampton-El were the subject of two applications each. These applications and related documents are contained in a sealed exhibit submitted to the court. On June 30, 1993 and September 2, 1993, the Attorney General, acting pursuant to 50 U.S.C. § 1806(b), authorized use of materials derived from the electronic surveillance in connection with this prosecution.

Each of the six orders was signed by a judge of the FISA court, and is based on an application accompanied by a certification from either the Director of the FBI or the Assistant to the President for National Security Affairs, each of whom is or had been authorized to make such certification pursuant to authority granted by 50 U.S.C. § 1804(a)(7), that the information sought is foreign intelligence information within the meaning of 50 U.S.C. § 1801(e)(1)(B) — i.e., information relating to either a United States citizen or a lawful resident alien that is necessary to protect the United States against "sabotage or international terrorism by a foreign power or an agent of a foreign power." The statute defines a "foreign power" to include "a group engaged in international terrorism or activities in preparation therefor," 50 U.S.C. § 1801(a)(4), and defines "international terrorism" as activities that:

(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State,

(2) appear to be intended —

(A) to intimidate or coerce a civilian population (B) to influence the policy of a government by intimidation or coercion; or

(C) to affect the conduct of a government by assassination or kidnapping; and

(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.

50 U.S.C. § 1804(c). Each of the orders is accompanied by one or more implementing or amended orders and certifications therefor.

The FISA court judge who reviewed each of the applications was charged under the statute with determining only that there was probable cause to believe that the target of the surveillance was an agent of a foreign power as defined in the statute, including a member of a group engaged in international terrorism or activities in preparation for such terrorism, 50 U.S.C. § 1801(b)(2)(C), (D), that the application contained all the necessary certifications and that the certifications were not clearly erroneous, including insofar as they represented that the primary purpose of the surveillance was the gathering of foreign intelligence information. 50 U.S.C. § 1805; United States v. Duggan, 743 F.2d 59, 77 (2d Cir.1984). Specifically, it was not the function of that FISA court judge nor is it the function of this judge to "second-guess" the certifications. Duggan, 743 F.2d at 77.

Also included with the materials submitted to the court is the affidavit of the Acting Assistant Director of the FBI, sworn to September 2, 1993, describing some of the foreign intelligence information derived from the surveillance and why disclosure of the applications and other materials that comprise the sealed exhibit would be prejudicial to the security interests of the United States. These reasons include disclosure to possible terrorist groups of the nature of the information gathered by this country, the methods used to gather such information, and other sensitive information about the techniques and capabilities employed by this country to detect and combat international terrorism. Based on that affidavit, the Attorney General has averred by affidavit sworn to September 7, 1993,

that to publicly disclose, or have an adversary hearing with respect to, the particular facts contained in the sealed Exhibit and concerning electronic surveillance other than to the court, ex parte, in camera, would harm the national security of the United States; that the sealed Exhibit contains sensitive information concerning United States intelligence sources and methods and other information relating to United States efforts to conduct counter-terrorism investigations; and that it would damage the security interests of the United States to further reveal the sources and methods this Nation is using to conduct such investigations.

(Reno Aff. 9/2/93 ¶ 4)

The statute directs that this court's function when presented with motions of the kind involved here is to review the application and related materials "in camera and ex parte ... to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. § 1806(f). The statute authorizes disclosure of such materials or portions thereof to an aggrieved party, under appropriate security procedures and protective orders, "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." Id. Finally, the statute directs that the fruits of surveillance not lawfully authorized or conducted be suppressed, but that if the court determines that the surveillance has been lawfully authorized and conducted, "it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure." § 1806(g).

II.

Based on the statutory provisions above cited and the materials above described, I find that no disclosure to any of the moving defendants is necessary to make an accurate determination of whether the surveillance at issue was lawfully authorized or conducted. Although no more is necessary under the statute to determine the legality of the surveillance, Siddig Ali argues, apparently as a matter of due process, see 50 U.S.C. § 1806(f), supra, not so much that discovery or disclosure is required as that in view of the disclosure of the substance of the surveillance itself in this case there is no longer any justification for the Attorney General's position that disclosure of the sealed exhibit would harm national security.

That argument has no factual merit because the information heretofore disclosed — the substance of the intercepted conversations — does not compromise the security concerns that underlie the Attorney General's request that the exhibit remain confidential. Thus, disclosure of the conversations does not disclose the strategies, capabilities and techniques of those who gather information, or risk disclosing the identity of those who may provide information.

Beyond its lack of factual merit, the argument has no logical application here because there has been no suggestion of how disclosure is necessary for the court to evaluate the lawfulness of the surveillance or is otherwise necessary to assure due process. Because those are the only justifications for disclosure, the motions will be decided with the submitted material held in camera.

III.

The moving defendants' main argument is that FISA was misused. They argue that the principal...